eDiscovery Rules

Rules 16(B) and 26(F) [Meet & Confer]

Rule 16.

Pretrial Conferences; Scheduling; Management

(b) Scheduling and Planning.

Except in categories of actions exempted by district court rule as inappropriate, the district judge, or a magistrate judge when authorized by district court rule, shall, after receiving the report from the parties under Rule 26(f) or after consulting with the attorneys for the parties and any unrepresented parties by a scheduling conference, telephone, mail, or other suitable means, enter a scheduling order that limits the time

(1) to join other parties and to amend the pleadings;

(2) to file motions; and

(3) to complete discovery.

The scheduling order also may include

(4) modifications of the times for disclosures under Rules 26(a) and 26(e)(1) and of the extent of discovery to be permitted;

(5) provisions for disclosure or discovery of electronically stored information;

(6) any agreements the parties reach for asserting claims of privilege or of protection as trialpreparation material after production;

(7) the date or dates for conferences before trial, a final pretrial conference, and trial; and

(8) any other matters appropriate in the circumstances of the case.

The order shall issue as soon as practicable but in any event within 90 days after the appearance of a defendant and within 120 days after the complaint has been served on a defendant. A schedule shall not be modified except upon a showing of good cause and by leave of the district judge or, when authorized by local rule, by a magistrate judge.

Rule 26.

General Provisions Governing Discovery; Duty of Disclosure

(f) Conference of Parties; Planning for Discovery.

Except in categories of proceedings exempted from initial disclosure under Rule 26(a)(1)(E) or when otherwise ordered, the parties must, as soon as practicable and in any event at least 21 days before a scheduling conference is held or a scheduling order is due under Rule 16(b), confer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), to discuss any issues relating to preserving discoverable information, and to develop a proposed discovery plan that indicates the parties’ views and proposals concerning:

(1) what changes should be made in the timing, form, or requirement for disclosures under Rule 26(a), including a statement as to when disclosures under Rule 26(a)(1) were made or will be made;

(2) the subjects on which discovery may be needed, when discovery should be completed, and whether discovery should be conducted in phases or be limited to or focused upon particular issues;

(3) any issues relating to disclosure or discovery of electronically stored information, including the form or forms in which it should be produced;

(4) any issues relating to claims of privilege or of protection as trial-preparation material, including – if the parties agree on a procedure to assert such claims after production – whether to ask the court to include their agreement in an order;

(5) what changes should be made in the limitations on discovery imposed under these rules or by local rule, and what other limitations should be imposed; and

(6) any other orders that should be entered by the court under Rule 26(c) or under Rule 16(b) and (c).

Rules 16(B) and 26(F) Summary

These two rules alert counsel and the court that they should consider E-Discovery issues as early and comprehensively as possible. The opposing parties must meet and confer at least 21 days before the scheduling conference with the court in order to work out agreements on the preservation of electronically stored information (ESI), the forms of ESI production, the methods that will be employed to filter out irrelevant information, and protection for privileged information. Once the parties have met and the scheduling conference has occured, the court will issue a scheduling order that will govern the pace of the litigation.

Rules 16(B) and 26(F) Checklist

Prior to the start of litigation, get to know your client’s IT structure and data retention policies.

Draft and serve a preservation request defining the minimum scope of relevant information.

Negotiate terms for a clawback agreement in the event that privileged material is inadvertently produced.

Set up a 30(b)(6) deposition for the opposing party’s IT manager in order to learn about their IT structure and data retention policies.